Posey v. Woods

Filing 43

ORDER GRANTING PETITIONERS MOTIONS FOR AN EXTENSION OF TIME (Docs. 41, 42)AND DENYING AS MOOT PETITIONERS MOTION FOR AN EXTENSION OF TIME TO AMEND THE PETITION (Doc. 37) AND DENYING PETITIONERS MOTION FOR IMMEDIATE CONSIDERATION (Doc. 40) (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EUGENE POSEY,
Petitioner,

Case No.12-10655

v.
HON. AVERN COHN
CATHERINE BAUMAN,
Respondent.
_________________________________/
ORDER
GRANTING PETITIONER’S MOTIONS FOR AN EXTENSION OF TIME
(Docs. 41, 42)
AND
DENYING AS MOOT PETITIONER’S MOTION FOR AN EXTENSION OF TIME TO
AMEND THE PETITION (Doc. 37)
AND
DENYING PETITIONER’S MOTION FOR IMMEDIATE CONSIDERATION (Doc. 40)
I.
This is a habeas case under 28 U.S.C. § 2254. Petitioner, a state prisoner
proceeding pro se, challenges his state court conviction. In 2012, the Court granted
Petitioner’s motion to stay and hold the petition in abeyance so Petitioner could exhaust
additional claims in the state courts. (Doc. 24). On September 2, 2015, the Court
granted Petitioner’s motion to reopen the case to the Court’s docket. (Doc. 32). The
Court also gave Petitioner ninety days from the date of the order to file an amended
habeas petition. Petitioner filed a motion for an extension of time to file the amended
petition. (Doc. 33). Petitioner also submitted an amended petition. (Doc. 34).
Respondent filed an answer to the petition on February 29, 2016. (Doc. 38).

1

Before the Court are several motions by Petitioner, as follows:
-

Two motions for an extension of time to file a reply brief. (Doc. 41, 42)

-

A motion for an extension of time to file an amended habeas petition. (Doc. 37)

-

A motion for immediate consideration. (Doc. 40).
II.
A.
The motions for an extension of time will be granted. Petitioner shall have sixty

(60) days from the date of this order to file a reply brief.
B.
The motion for an extension of time to file an amended petition is moot.
Petitioner filed his motion for an extension of time to file an amended petition on
December 31, 2015, before the Court granted his first request for an extension of time
to file an amended petition. Moreover, in a letter sent by Petitioner to the Court dated
January 6, 2016, (Doc. 36), Petitioner indicates he no longer wishes to amend one of
his claims.
C.
In his motion for immediate consideration, Petitioner asks the Court to again
consider his motions for appointment of counsel, for the appointment of investigative
assistance, for discovery, and a renewed motion for appointment of counsel. This
motion will be denied.
The Court previously denied Petitioner’s motion for investigative assistance and
motion for an evidentiary hearing. (Doc. 17). The Court also denied Petitioner’s
renewed motion for the appointment of counsel. (Doc. 28).
2

Regarding the appointment of counsel, there is no constitutional right to counsel
in habeas proceedings. Cobas v. Burgess, 306 F. 3d 441, 444 (6th Cir. 2002). The
decision to appoint counsel for a federal habeas petitioner is within the discretion of the
court and is required only where the interests of justice or due process so require. Mira
v. Marshall, 806 F. 2d 636, 638 (6th Cir. 1986).
Here, Petitioner filed a petition for writ of habeas corpus and an amended petition
for writ of habeas corpus, along with numerous motions. Petitioner therefore has the
means and ability to present his claims. Furthermore, until the Court reviews the papers
and the Rule 5 materials, it is unable to determine whether an evidentiary hearing is
necessary or required. Thus, the interests of justice at this point in time do not require
appointment of counsel. The request for the appointment of counsel is denied without
prejudice.
Regarding Petitioner’s motion for discovery and for investigative assistance to
depose witnesses, “[a] habeas petitioner, unlike the usual civil litigant, is not entitled to
discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Instead, a habeas petitioner is entitled to discovery only if the district judge “in the
exercise of his discretion and for good cause shown grants leave” to conduct discovery.
Rule 6 Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.
foll. § 2254.
Until the Court reviews the pleadings, “it is impossible to evaluate what, if any,
discovery is needed and whether the discovery is relevant and appropriately narrow.”
Gengler v. United States ex rel. Dept. of Defense & Navy, 463 F. Supp. 2d 1085,
1114-15 (E.D. Cal. 2006). In addition, the Rule 5 materials have not yet been filed.
3

These materials, which consist of the entire state court record, may eliminate
Petitioner’s need for discovery. As such, Petitioner’s request for discovery and
investigative assistance are denied without prejudice.
III.
Petitioner’s motions for an extension of time to file a reply brief (Doc. 41, 42) are
GRANTED. Petitioner has sixty days from the date of the order to file a reply brief.
Petitioner’s motion for an extension of time to file an amended petition (Doc. 37)
is DENIED AS MOOT.
Petitioner’s motion for immediate consideration (Doc. 40) is DENIED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: April 14, 2016
Detroit, Michigan

4